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13 June 2013 PRESS SUMMARY O’Neill No 2 (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) Lauchlan (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2013] UKSC 36 On appeal from: [2012] HCJAC 51; [2012] HCJAC 20 JUSTICES: Lord Hope (Deputy President), Lord Kerr, Lord Wilson, Lord Hughes and Lord Toulson BACKGROUND TO THE APPEALS The issues in these appeals relate to the right to a fair trial. Alison McGarrigle had a son, Robert, by her former husband. Robert was subject to a residential supervision order requiring him to live with his father during the week but permitted him to visit his mother on Saturdays. On 14 June 1997 Robert did not return to his father’s address and instead he and his mother went to live with the appellants in a house in Largs. A drinking session took place there on or about the 20 June 1997 at which a number of people including the appellants, Robert and Mrs McGarrigle were present. The next morning she was gone and was never seen by Robert again. She was reported to police as missing on 16 February 1998. The investigation continued but in the meantime, on 17 June 1998, the appellants were convicted of sexual offences including offences against Robert McGarrigle and were sentenced to 6 and 8 years imprisonment respectively. Whilst serving their sentences the appellants were taken by police for questioning on suspicion of conspiracy to murder Alison McGarrigle. They were asked by the officers whether they were involved in her murder, but they both remained silent. Owing to a lack of evidence at that time, proceedings were not commenced against the pair. The appellants were eventually charged in 2005 for the murder of Mrs McGarrigle and remanded in custody. On 10 June 2010 the appellants were found guilty in the High Court of Justiciary at Glasgow of the murder of Mrs Allison McGarrigle between 21 June and 1 September 1997 and of a subsequent attempt to defeat the ends of justice by disposing of her body in the sea. In a separate trial held immediately before, the appellants were found guilty of a series of sexual offences relating to children. Both trials took place in front of the same judge, Lord Pentland, but with different juries. After the verdict in the first trial the Advocate Depute moved for sentence and handed the judge a list of the appellants’ previous convictions. The judge reserved sentencing for the sexual offences until after the trial for murder was complete. At the time of informing the appellants of this, the judge referred to their records and made comments to them that they were ‘evil, determined, manipulative and predatory paedophiles of the worst sort’. The two issues for the Supreme Court were: (1) when the appellants were ‘charged’ for the purposes of their right to a trial within a reasonable time in terms of article 6(1) of the Convention (the appellants argued that time started to run when they were first questioned in 1998 and therefore there had been a breach of their right); and (2) whether the comments and conduct of the trial judge were such as to breach the appellants’ right to a fair trial by an impartial tribunal in terms of article 6(1) of the Convention and, if so, whether the act of the Lord Advocate in persevering with the trial was The Supreme Court of the United Kingdom Parliament Square London SW1P 3BD T: 020 7960 1886/1887 F: 020 7960 1901 www.supremecourt.gov.ukincompatible with the appellants’ rights under article 6(1). Both issues arose from the refusal of the Appeal Court to grant leave for the relevant grounds of appeal to be argued in the appeal in Scotland. The Appeal Court did however grant permission to appeal its refusal to the Supreme Court. The Supreme Court held that it had jurisdiction to consider the issues on the basis that they were compatibility issues in terms of the Criminal Procedure (Scotland) Act 1995 (as amended by the Scotland Act 2012), issue (1) being an appeal against a decision of the Appeal Court and issue (2) being a reference from the Appeal Court. JUDGMENT The court determines the two compatibility issues as follows: (1) that the date when the reasonable time began for the purposes of the appellants’ article 6(1) Convention right was 5 April 2005; and (2) that the Lord Advocate’s act in proceeding with the trial on the murder charges was not incompatible with the appellants’ article 6(1) right to a trial before a tribunal that was independent and impartial. The proceedings will be remitted to the High Court of Justiciary [58]. Lord Hope gives the judgment of the court. REASONS FOR THE JUDGMENT References in square brackets are to paragraphs in the judgment The meaning of the word ‘charged’ has been considered in a number of cases regarding article 6(1), which provides that in the determination of any “criminal charge against him” a person has the right to a fair trial within a reasonable time and article 6(3)(c) which provides a right to legal assistance for anyone “charged with a criminal offence” [25-32]. The focus of article 6(3)(c) is on the state of affairs when the suspect is first interrogated, as to wait until the stage is reached when there is sufficient evidence to charge before the suspect has the right of access to a lawyer could seriously prejudice his right to a fair trial. This is in contrast with the reasonable time guarantee of article 6(1): it relates to the running of time, not on what is needed to preserve the right to a fair trial. The rationale is the person should not remain too long in a state of uncertainty. Time runs from the date which the suspect’s position is substantially affected by the official notification. In the United Kingdom this could be some time after he is first questioned [33-34]. The date from which reasonable time begins is the subject of a separate guarantee from the guarantee that the trial will be fair and falls to be approached independently [36]. The appellants were certainly not at any stage of their interviews “charged” in the formal sense. They were both asked directly whether they killed Mrs McGarrigle. But, in the context in which these questions were being put, it cannot be said that this amounted to an official notification that they were likely to be prosecuted [37]. In the absence of any evidence to show where, when and how she had died, the police were in no position to initiate criminal proceedings. In August 2003 they received information that led to further enquiries and resulted in the appellants being charged with murder in 2005 [38]. On the issue of apparent bias, the test is contained in Porter v Magill [2001] UKHL 67 and considered in a number of authorities [47-52]. It would only be if the judge expressed outspoken opinions about the appellants’ character that were entirely gratuitous, and only if the occasion for making them was plainly outside the scope of the proper performance of his duties, that the fair minded and informed observer would doubt the judge’s ability to perform those duties with an objective judicial mind. The context indicates that nothing of the kind happened in this instance [53-54]. Furthermore, no objection was made by the defence at any point to the fact that Lord Pentland was to preside over the murder trial as well and there are no grounds for doubting his impartiality [55-56]. NOTE This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: www.supremecourt.gov.uk/decided-cases/index.html The Supreme Court of the United Kingdom Parliament Square London SW1P 3BD T: 020 7960 1886/1887 F: 020 7960 1901 www.supremecourt.gov.uk
Trinity Term [2013] UKSC 36 On appeal from: [2012] HCJAC 51; [2012] HCJAC 20 JUDGMENT O’Neill No 2 (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) Lauchlan (AP) (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) before Lord Hope, Deputy President Lord Kerr Lord Wilson Lord Hughes Lord Toulson JUDGMENT GIVEN ON 13 June 2013 … Continue reading
13 June 2013 PRESS SUMMARY Apollo Engineering Limited (Appellant) v James Scott Limited (Respondent) (Scotland) [2013] UKSC 37 On appeal from [2012] CSIH 4; [2012] CSIH 88 JUSTICES: Lord Hope, Lord Clarke and Lord Carnwath BACKGROUND TO THE APPEAL This case concerns an aspect of the Supreme Court’s jurisdiction to hear appeals in Scottish civil cases. Mr and Mrs Politakis are the directors and the only shareholders of Apollo Engineering Ltd (“Apollo”). They wish to appeal against two orders that were made in a case stated for the opinion of the Inner House of the Court of Session under section 3 of the Administration of Justice (Scotland) Act 1972. The stated case arose from an arbitration between Apollo and James Scott Ltd in relation to a contractual dispute [2]. Apollo ran out of funds and could no longer afford legal representation. On 18 January 2012 the Inner House made an order refusing Mr Politakis’ request that he represent Apollo, on the basis that as a matter of Scots law, a company requires to be legally represented. On 27 November 2012 the Inner House made a further order in which, among other things, it (1) refused Mr Politakis leave to appeal to the Supreme Court against the order of 18 January 2012; (2) refused to allow Mr Politakis to be joined as a party either to replace or in addition to Apollo; and (3) dismissed the stated case [3, 4]. Section 40 of the Court of Session Act 1988 (“the 1988 Act”) regulates appeals to the Supreme Court in Scottish civil cases. It provides that it is competent to appeal from the Inner House to the Supreme Court without the leave of the Inner House, against: (1) a judgment on the whole merits of the cause; (2) an interlocutory judgment where there is a difference of opinion among the judges; or (3) where the interlocutory judgment is one sustaining a dilatory defence and dismissing the action. It is also competent to appeal to the Supreme Court with the leave of the Inner House against any other type of interlocutory judgment of the Inner House [6]. The House of Lords had decided in the case of John G McGregor (Contractors) Ltd v Grampian Regional Council 1991 SC (HL) 1 that an opinion of the court in a stated case did not constitute a “judgment” within the meaning of section 40 of the 1988 Act. In the present case, an opinion on the legal issues in the stated case had not been given [7]. Two issues are before the Supreme Court: (1) whether the McGregor principle applies in the present case so that an appeal against the order of 27 November 2012 is incompetent; and (2) if not, whether the part of the order of 27 November 2012 which dismissed the stated case can competently be appealed to the Supreme Court under section 40 of the 1988 Act without the leave of the Inner House. The Supreme Court directed that these two issues should be the subject of an oral hearing [8]. There is no self-standing right of appeal to the Supreme Court against the order of 18 January 2012, because it was an interlocutory judgment under section 40 of the 1988 Act and the Inner House has refused leave to appeal against it [9]. JUDGMENT The Supreme Court of the United Kingdom Parliament Square London SW1P 3BD T: 020 7960 1886/1887 F: 020 7960 1901 www.supremecourt.gov.ukApollo can competently appeal to the Supreme Court without the leave of the Inner House against the part of the order of 27 November 2012 which dismissed the stated case, as long as the appeal raises a question which can be responsibly be certified by counsel as reasonable [16, 28, 29]. Lord Hope gives the judgment of the Court. REASONS FOR THE JUDGMENT On issue (1), the Court holds that none of the cases in this area, including the McGregor case, offer direct assistance on the question that is to be resolved, and none deals with the situation where the court has declined to do what the statute provides for, which is to give an opinion [10 – 14]. The ordinary use of language indicates that an appeal to the Supreme Court against an opinion of the Inner House under section 3 of the 1972 Act is excluded by necessary implication because it is for the opinion of that court only that the case has been stated. But the 1972 Act makes no provision for the course of action that the Inner House felt obliged to take in this case: dismissing the stated case without giving its opinion on the questions that were before it at all [15]. On issue (2), the Court holds that the order dismissing the stated case cannot be regarded as an interlocutory judgment of the kind which is appealable only with leave under section 40 of the 1988 Act. All the issues that were in controversy before the Inner House were disposed of when the stated case was dismissed. In dismissing the stated case, the court exhausted its functions under the statute, save as to resolving any outstanding issues about expenses. The effect of the order was to end the proceedings completely, in just the same way as if it had encompassed the court’s opinion on the questions that were before it [22, 23]. It is not easy to characterise the order dismissing the stated case as one “sustaining a dilatory defence and dismissing the action”. The order gave effect to a motion by James Scott Ltd based on Apollo’s inability to fulfil the court’s rules of practice about representation. It would be stretching the language of the statute to say that this objection was a defence, especially as the procedure under section 3 was not one that could, in the ordinary sense of the word, be defended [27]. It may not matter much whether the order is to be regarded as a judgment on the whole merits of the cause or as one sustaining a dilatory defence, as both are appealable without the leave of the Inner House. On balance, however, it would be more correct to regard it as a judgment on the whole merits of the cause within the meaning of section 40 of the 1988 Act, even though the Inner House did not address itself to the issues raised in the stated case [27]. As is the case with all other orders that are appealable without leave however, Apollo’s petition of appeal must be certified by two counsel as reasonable – the test for which is whether the appeal raises arguable points of law which are of general public importance. The only question which the Supreme Court can consider is whether the order of the Inner House to dismiss the stated case was one which was open to it to make under the jurisdiction given to it by the statute. Unless something has gone seriously wrong, however, this was an exercise of judgment on a matter of procedure with which this court would not normally wish to interfere [29]. The question whether there was any way in which Apollo’s interests could have been represented which might have avoided the situation in which the Inner House felt obliged to dismiss the stated case is not before the Court. But it is a troublesome aspect of this case, and there may be grounds for thinking that the rule which disables a company from being represented other than by counsel or a solicitor with a right of audience needs to be re-examined [30]. References in square brackets are to paragraphs in the judgment NOTE This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: www.supremecourt.gov.uk/decided-cases/index.html The Supreme Court of the United Kingdom Parliament Square London SW1P 3BD T: 020 7960 1886/1887 F: 020 7960 1901 www.supremecourt.gov.uk
Trinity Term [2013] UKSC 37 On appeal from: [2012] CSIH 4; [2012] CSIH 88 JUDGMENT Apollo Engineering Limited (Appellant) v James Scott Limited (Respondent) (Scotland) before Lord Hope, Deputy President Lord Clarke Lord Carnwath JUDGMENT GIVEN ON 13 June 2013 Heard on 13 May 2013 Appellant Respondent Gabriel Politakis Nick Ellis QC (Instructed by Macroberts … Continue reading
supreme court of U.K.=On 26 October 2010 this Court issued its judgment in Cadder v HM Advocate [2010] UKSC 43, 2010 SLT 1125. It held that the Crown’s reliance on admissions made by an accused who had no access to a lawyer while he was being questioned as a detainee under section 14 of the Criminal Procedure (Scotland) Act 1995 gave rise to a breach of his right to a fair trial, having regard to the decision of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421. This was because the leading and relying on incriminating statements made by the appellant while being interviewed by the police in such circumstances was a violation of his rights under article 6(3)(c) read in conjunction with article 6(1) of the European Convention on Human Rights: see Cadder v HM Advocate, para 63.=Generally speaking the court will shut its face against the admission in evidence of any coerced Page 17 statement (that of a third party is, of course, in any event inadmissible as hearsay); it will, however, admit in evidence the fruit of the poisoned tree. The balance struck here (‘a pragmatic compromise’ as . . . [Lord Bingham describes it]) appears plainly from section 76 of the Police and Criminal Evidence Act 1984. There is, moreover, this too to be said: whereas coerced statements may be intrinsically unreliable, the fruits they yield will have independent evidential value.” 33. If, then, as I believe, the position is that the facts discovered as a result even of a coerced confession are (subject always to the court’s discretionary power under section 78(1) to exclude evidence) admissible in evidence – although not, of course, evidence that it was the accused’s statement that led to the discovery of the fact, ie the situation in Chalmers v HM Advocate [1954] JC 66 itself (see section 76(5) and (6) of PACE) – the position cannot be different (and certainly the prosecution cannot be under greater inhibition) with regard to facts discovered (as here) as a result of a police interview notwithstanding the wrongful failure to provide the accused with legal assistance. 34. If there would be a discretion in the court to admit evidence of, say, a bomb found with the accused’s fingerprints all over it discovered by the police as a result of a confession extracted from him by torture, it surely must be in the court’s discretion to admit oral evidence from the friend in the particular circumstances of the present appeal.
Michaelmas Term [2011] UKSC 44 JUDGMENT REFERENCE – Her Majesty’s Advocate v P (Scotland) before Lord Hope, Deputy President Lord Brown Lord Kerr Lord Dyson Lord Matthew Clarke JUDGMENT GIVEN ON 6 October 2011 Heard on 28, 29 and 30 June 2011 Appellant Respondent Frank Muholland QC, Lord Advocate Matthew Auchincloss Joanna Cherry QC Catherine … Continue reading
Provincial Insolvency Act, 1920: Sections 35, 37, 43,(1)-Annulment of insolvency-Effect of-In suit for insolvency a joint agreement was filed for sale with a clause for re- conveyance within 5 years-Plaintiff declared insolvent-Sale deed executed by official receiver-Plaintiff sent notice for re-purchase-Since creditor refused to re-convey, plaintiff filed suit for specific performance- Subsequently, adjudication as insolvent unconditionally annulled-Held-On annulment, property and rights of plaintiff stand restored to him with retrospective effect-Insolvency gets wiped out togehter-Notice sent and suit filed for re-conveyance when plaintiff was an undischarged insolvent, get retrospectively validated. Contract Act, 1872 : Section 55-Held-Time is of essence where contract is for re-conveyance of immovable property. Section 62-Novation-Plea cannot be raised or accepted for the first time in second appeal under Section 100 CPC. Code of Civil Procedure, 1908-Section 100-Contention of creditor that there was breach of re-conveyance agreement by plaintiff not pressed before trial court-However, in second appeal it was held that there was breach of re- conveyance agreement and sale deed was in pursuance of new contract-On appeal, held: High Court exceeded its jurisdiction u/s 100 C.P.C in giving a finding on an issue not pressed in trial court-Also, plea of novation cannot be accepted for the first time in second appeal. Limitation Act, 1963-Part II of Article 54-Where agreement does not specify period within which vendee is to execute deed of re-purchase- Held-Time of three years starts to run only from the date vedee refuses to execute re- conveyance deed. The Respondent-defendant instituted an insolvency suit on 19.11.1963 against the appellant-Plaintiff since the Plaintiff failed to return Rs. 7,000 owed to him. On the same day, the plaintiff and the defendant filed a joint application before the Insolvency Court, seeking permission for the debtor to transfer his property to the creditor in full satisfaction of his dues, with the condition that the debtor may repurchase the property, within 5 years, for Rs. 7,000. In terms of the settlement, the creditor agreed to withdraw the Insolvency Petition. Accordingly, on 22.11.1963 an Order was passed by the Court permitting the interim receiver to execute the sale deed. However, neither the sale deed was executed by the interim receiver nor were steps taken by the creditor to withdraw the Insolvency Petition and on 29.5. 1964, the plaintiff was adjudicated an insolvent and directed to apply for discharge within one year. The Official Receiver, however, executed a sale deed on 15.7.1964, wherein the plaintiff also joined as vendor, and reported to the insolvency court that the plaintiff had cleared all his debts. The plaintiff moved for discharge and later unsuccessfully moved an application u/s 43(1) of the Insolvency Act for annulment since all creditors had been paid in full. In appeal, the adjudication of the plaintiff as an insolvent was annulled, unconditionally on 22.10.1964. In the meanwhile, before annulment, since the period of 5 years for seeking re-conveyance was going to expire, the plaintiff issued notice on 12.7.1968 to the creditor to reconvey the property to him on payment of Rs. 7,000 However, the creditor refused to re-convey the property. A suit was filed by the Plaintiff seeking specific performance of the re conveyance agreement entered into between the plaintiff and the creditor on 19.11.1963 and filed in the insolvency court. The suit was decreed and the judgement of the trial court was affirmed in first appeal. However, in second appeal the High Court reversed the judgements of the lower courts. The High Court held that the agreement contained in the joint application dated 19.11.1963 was not given effect; the sale deed dated 15.7.1964 executed by the official receiver was not in pursuance of the original agreement dated 19.11.1963 but in pursuance of a “fresh contract” which did not have a re-conveyance clause; the contract dated 19.11.1963 was a conditional contract and since the conditions laid down by Order dated 22.11.1963 had not been fulfilled, there was no enforceable contract of re conveyance. In appeal to this Court the plaintiff-appellant contended that the High Court erred in holding that the order of insolvency court dated 22.11.1963 or sale deed dated 15.7.1964 executed by official receiver did not refer to re-conveyance agreement filed before the court and hence, the same was not enforceable; the High Court under Section 100 CPC, in second appeal, could not give a finding on an issue not pressed before the trial court and hold that the plaintiff had committed a breach of contract; that there was no fresh/new contract consequent to which the sale deed was executed by official receiver in favour of the creditor; that the annulment retrospectively validates the option exercised by the plaintiff vide notice dated 12.7,1968 and the filing of the suit on 6.10.1969, even though he was an undischarged insolvent on that date. The respondent-creditor contended that there was fresh contract at the time of execution of sale deed by official receiver on 15.7.1964 which was not traceable to the agreement dated 19.11.1963 which had a clause for re- conveyance. The Plaintiff did not implement the first agreement by executing the sale deed in favour of the respondent. The suit was not maintainable since the plaintiff was an undischarged insolvent on that date.
PETITIONER: SRI BABU RAM ALIAS PRASAD Vs. RESPONDENT: SRI INDRA PAL SINGH (DEAD) BY LRS. DATE OF JUDGMENT: 13/08/1998 BENCH: S.B. MAJMUDAR, M. JAGANNADHA RAO ACT:HEADNOTE:JUDGMENT: J U D G M E N T M. JAGANNADHA RAO, J. The appellant is the plaintiff in the original suit bearing No.225 of 1969 on the file of … Continue reading
In the light of the principles of Mohammedan Law the two trusts are valid Wakfs and are not affected by Sections 13 and 14 of the Transfer of Property Act, 1882. As a result the settlor had divested himself of these properties during his lifetime for the benefit of his grand daughter and his daughter-in-law and thereafter for their descendants and then for holy shrine. On the date of his death the settlor did not have any interest in the properties nor had he reserved any interest to himself under these trusts. Hence, for the purposes of Estate Duty, the deceased cannot be considered as having any interest in the trust property, which passed on his death. The properties, which constituted the subject matter of the two trusts, therefore cannot be included in the estate of the deceased for purposes of estate duty. [955-F-H] Sala v. Hussain, AIR (1955) Hyd 229, approved. Abul Fata Mohammad Ishak v. Rasamaya Dhur Chowdhary, (1894) 22 IA 76, overruled. Rasamaya Dhur Chowdhary v. Abul Fata Mohammad Ishak, (1891) ILR 18 Cal 399, referred to. Syed Ameer Ali: Mahommedan Law (Fourth Edn.) Vol. 1 p. 284, A.A. Fyzee Outlines of Muhammadan Law
PETITIONER: TRUSTEES OF SAHEBZADI OALIA KULSUM TRUST Vs. RESPONDENT: THE CONTROLLER OF ESTATE DUTY, A.P. DATE OF JUDGMENT: 03/08/1998 BENCH: SUJATA V. MANOHAR, M. SRINIVASAN ACT: HEADNOTE: JUDGMENT: J U D G M E N T Mrs. Sujata V. Manohar. J. On 21st of March, 1953, the Nizam of Hyderabad, Sir Mir Osman Ali Khan, … Continue reading
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